When someone dies as a result of an accident or injury caused by another party, the deceased’s estate may have legal claims to seek justice and compensation. Illinois law recognizes two distinct types of legal claims that can arise from such a death: wrongful death claims and survival claims. Understanding the differences between these two types of actions is crucial, especially for the estate’s personal representative, when navigating the probate process.
In this post, we’ll break down what these claims are, how they differ, and how they tie into the probate process in Illinois.
What is a Wrongful Death Claim?
A wrongful death claim is a legal action brought on behalf of the surviving family members of a person who dies due to the negligence, recklessness, or intentional act of another party. Unlike other types of personal injury claims, a wrongful death action is specifically designed to compensate the surviving family members for their loss.
In Illinois, the Wrongful Death Act (740 ILCS 180) governs these claims. The surviving family members (typically spouses, children, or parents) are entitled to compensation for:
- The loss of companionship: This includes emotional distress and the loss of care, attention, and comfort that the decedent provided to their family.
- The loss of financial support: If the decedent was a primary breadwinner, the family may seek compensation for the loss of financial support that would have been provided had the decedent lived.
- Funeral and burial expenses: The costs of funeral services and burial can be part of the wrongful death claim.
One key feature of a wrongful death action is that it cannot be filed by the decedent’s estate itself. Instead, the claim is filed by the personal representative of the deceased’s estate, typically a family member, who is appointed during the probate process. This representative brings the lawsuit on behalf of the surviving heirs.
What is a Survival Cause of Action Claim?
A survival cause of action (or simply a survival action) is a legal claim that is brought by the decedent’s estate for injuries or damages the decedent suffered prior to their death. Unlike a wrongful death claim, a survival claim is not focused on the emotional or financial loss of the survivors but rather on the damages the decedent could have pursued had they lived.
In Illinois, survival actions are governed by the Survival Act (755 ILCS 5/27-6), which allows the personal representative of the deceased’s estate to pursue claims for:
- Medical expenses: This includes costs for medical treatment, hospital bills, and other related expenses incurred as a result of the injury.
- Pain and suffering: The decedent’s pain and suffering from the injury before death can be pursued.
Lost wages: If the decedent was unable to work due to the injury prior to death, compensation for lost earnings can be claimed. - Property damage: If the decedent’s property was damaged in the accident, the estate can seek compensation for this loss.
A survival action is pursued by the decedent’s estate (not the heirs directly), and the proceeds from a successful survival claim become part of the estate. These funds are then used to pay off any debts or expenses of the estate before being distributed to the decedent’s beneficiaries.
Key Differences Between Wrongful Death and Survival Actions
While both types of claims arise from the same tragic event — the death of an individual caused by another party’s negligence or wrongful act — they differ in several important ways:
Who can file the claim?
Wrongful Death Claim: Filed by the personal representative of the decedent’s estate, on behalf of surviving family members (spouse, children, parents).
Survival Action Claim: Filed by the personal representative of the decedent’s estate, on behalf of the decedent’s estate.
What is the purpose?
Wrongful Death Claim:To compensate surviving family members for their loss, including loss of companionship, financial support, and emotional distress.
Survival Action Claim: To recover damages that the decedent suffered prior to death, such as medical bills, pain and suffering, and lost wages.
Who benefits from the claim?
Wrongful Death Claim: The surviving family members (spouse, children, parents, or other heirs).
Survival Action Claim: The decedent’s estate. The proceeds are distributed according to the decedent’s will or state intestacy laws.
What is claimed?
Wrongful Death Claim: Loss of companionship, loss of financial support, funeral expenses, and emotional distress.
Survival Action Claim: Medical expenses, lost wages, pain and suffering, property damage.
Statute of Limitations
Wrongful Death Claim: Typically two years from the date of death
Survival Action Claim: Typically two years from the date of the injury
How These Claims Tie into Probate
Probate is the legal process through which a deceased person’s estate is administered, including paying debts and distributing assets. Both wrongful death and survival claims are intricately tied to the probate process because:
- Personal Representative Appointment: In both types of claims, the personal representative (executor or administrator) of the decedent’s estate must be appointed by the court through the probate process. This representative is responsible for filing the legal claims, managing the estate’s assets, and ensuring the proper distribution of any proceeds from the lawsuit.
- Survival Claims and Estate Administration: The proceeds from a survival claim are part of the decedent’s estate. These funds may be used to pay off the decedent’s outstanding debts, medical bills, and funeral expenses. Once these debts are settled, any remaining funds are distributed to the decedent’s heirs or beneficiaries, typically through the probate process.
- Wrongful Death Claims and Probate: Even though the wrongful death claim compensates family members directly for their emotional loss, the claim must still be initiated by the decedent’s estate, making it a part of the probate process. The personal representative of the estate will work closely with surviving family members to ensure that the claim is pursued in a timely manner. Once compensation is awarded, the funds are distributed to the heirs according to Illinois intestacy laws or the decedent’s will.
- Timing Considerations: Both claims have strict statutes of limitations, so it is crucial for the estate’s personal representative to act quickly in pursuing these legal actions. In wrongful death claims, the two-year time limit starts from the decedent’s date of death, while for survival actions, the clock begins ticking from the date of the injury. This makes it especially important to open the probate estate and appoint a personal representative as soon as possible.
- Tax Implications: Both wrongful death and survival claim proceeds can have tax implications for the estate. While wrongful death settlements are typically not taxable, any proceeds from a survival action (such as lost wages or medical bills) could be considered taxable income to the estate. The personal representative must work with tax professionals to ensure that any tax obligations are addressed during the probate process.
In Illinois, both wrongful death and survival cause of action claims are important tools for seeking justice and compensation after a tragic loss. However, they serve different purposes and benefit different parties. A wrongful death claim compensates surviving family members for their emotional loss, while a survival claim compensates the decedent’s estate for damages suffered before death.
Both claims tie into the probate process, as they are pursued by the decedent’s estate through the personal representative. The proper handling of these claims is essential for ensuring that the decedent’s financial and emotional legacy is preserved and that the surviving family members and beneficiaries are compensated fairly. It’s crucial for those involved in probate to understand the distinctions between these claims and to work with an experienced Chicago probate attorney to navigate the complex process of estate administration, personal injury law, and wrongful death litigation.
